President Obama on Tuesday issued a memorandum directing the Departments of Commerce and the Interior to reconsider regulations they had issued in December of last year to limit the impact of the listing of the polar bear as a threatened species. Although the Interior Department found that the number of polar bears have been increasing in the last several decades, the Department last year listed the polar bear as a threatened species based on actual and modeled future loss of Arctic sea ice. The Interior and Commerce Departments, however, were concerned as to the effect the listing decision could have on a wide variety of future development porjects undertaken anywhere in the United States. Because any project that emits or facilitiates the emission of carbon dioxide could be said to contribute to climate change, and therefore melting of arctic sea ice, any such project could become subject to Endangered Species Act (“ESA”) consultation requirements and potentially be blocked.
As a result, on December 16, 2008, the two Departments issued joint rules providing that ESA consultation requirements will not apply “where the effects of the action are the result of global processes and cannot be reliably predicted or measured or would result in an insignificant impact to listed species or are such that the potential risk of harm to a species is remote.” The rules also made other changes to ESA consultation requirements. The rules caused an uproar in the environmental community and the filing of lawsuits.
The President’s March 3 Memorandum directs the agencies to reconsider the rules and determine whether a new rulemaking should be undertaken. Signficantly, it also directs all agencies involved in ESA consultation to exercise their discretion to follow prior consultation practices.